doj filing on fbi investigation

8/17/2019 DOJ Filing on FBI Investigation

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THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

JASON LEOPOLD, ))

Plaintiff, )

)

v. ) Case No. 15-cv-02117 RDM)

U.S. DEPARTMENT OF JUSTICE )

)Defendant. )

__________________________________________)

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO SHOW CAUSE

I. INTRODUCTION

Defendant’s submission of a classified ex parte, in camera declaration in support

of its Motion for Summary Judgment complied with well-established procedures in this

Circuit for deciding cases under the Freedom of Information Act (“FOIA”).

The public declaration of David M. Hardy (“Hardy Decl.”), see ECF No. 9-1,

which was filed concurrently with Defendant’s Motion, provided detailed information

sufficient to establish, as a matter of law, that the Federal Bureau of Investigation (“FBI”)

conducted a reasonable search for records responsive to Plaintiff’s FOIA request and

properly withheld responsive information pursuant to FOIA Exemption 7(A). See Hardy

Decl. ¶¶ 10-24. The Hardy Declaration also explained, however, that the FBI could not

provide more information on the public record without adversely affecting the ongoing

investigation that is the subject of Plaintiff’s FOIA request. See id . ¶¶ 15, 19-20, 22. For

this reason, the FBI lodged a classified, in camera declaration to supplement its

Case 1:15-cv-02117-RDM Document 12 Filed 04/26/16 Page 1 of 12


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demonstration on the public record that it has complied with its obligations under FOIA

with respect to Plaintiff’s request.

The D.C. Circuit has specifically permitted the review of in camera declarations

in these circumstances, and this procedure is routinely followed by judges in this District.

Plaintiff’s arguments to the contrary are based largely on cases from outside this Circuit

that do not arise under FOIA. Nor is there merit to Plaintiff’s contention that the FBI

should have sought leave of Court or notified Plaintiff in advance of filing its classified

ex parte, in camera declaration – no such requirement exists in this Circuit. Moreover,

the filing of a redacted version of the declaration, as Plaintiff requests, would provide no

additional information that is not already contained in the Hardy Declaration and was

therefore not required under this Circuit’s precedent. Accordingly, the Court should deny

Plaintiff’s Motion to Show Cause.

II. BACKGROUND

This case concerns a November 3, 2015 FOIA request to the FBI for several

categories of information relating to any records retrieved from electronic equipment

obtained from former Secretary of State Hillary Rodham Clinton. After an initial status

conference held on February 9, 2016, see Jan. 21, 2016 Minute Order, the Court ordered

Defendant to file a motion for summary judgment based on Exemption 7(A) of FOIA on

or before March 25, 2016. See Feb. 9, 2016 Minute Order.1

Defendant filed its Motion for Summary Judgment in accordance with the Court’s

Order. See ECF No. 7. In support of the Motion, Defendant filed the Declaration of

David M. Hardy. See ECF No. 9-1, Hardy Decl. Defendant also filed a Notice of

1 That order also stated that “[b]y filing such a motion, Defendant does not waive its

right to later assert other FOIA exemptions.” Feb. 9, 2016 Minute Order.



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Lodging of Classified, In Camera, Ex Parte Declaration, informing Plaintiff and the

Court that Defendant was lodging with the Department of Justice’s Classified

Information Security Officer a classified declaration for the Court’s in camera, ex parte

review in support of Defendant’s Motion. See ECF No. 8. On April 19, 2016, Plaintiff

filed a Motion to Show Cause why Defendant should not be required to file a redacted

version of the declaration on the public record, or in the alternative requested that the

declaration be stricken. See ECF No. 11.

III. ARGUMENT

A. In Camera

, Ex Parte

Submissions Are Permitted in FOIA Cases,Where Appropriate.

The D.C. Circuit has made clear that district courts have the inherent authority to

examine documents in camera, authority that Congress specifically referenced in FOIA

itself. Arieff v. U.S. Dep’t of Navy, 712 F.2d 1462, 1469 (D.C. Cir. 1983) (citing 5 U.S.C.

§ 552(a)(4)(B) (authorizing courts to “examine the contents of . . . agency records in

camera to determine whether such records or any part thereof shall be withheld under any

of the exemptions . . . .”)). Therefore, “the receipt of in camera affidavits . . . when

necessary . . . [is] part of a trial judge’s procedural arsenal.” Id . (internal quotation

omitted); see also Hayden v. NSA, 608 F.2d 1381, 1385 (D.C. Cir. 1979) (“By providing

for In camera review, Congress has acknowledged that judges must sometimes make

these decisions without full benefit of adversary comment on a complete public record.

The present case is one example where some of the interests of the adversary process are



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outweighed by the nation’s legitimate interests in secrecy and orderly process for

disclosure.”).2

“This court has approved the procedure in FOIA cases, most frequently in

connection with an agency’s assertion of Exemption 1, relating to classified materials, but

on occasion with regard to the assertion of other exemptions as well.” Arieff , 712 F.2d at

1469 (approving district court’s review of in camera affidavit when evaluating

Exemption 6 claim and citing, inter alia, Campbell v. HHS , 682 F.2d 256, 265 (D.C. Cir.

1982) (suggesting that, on remand, district court could accept in camera submissions to

support Exemption 7(A) claim)) (internal citation omitted). In fact, the review of in

camera submissions can be particularly appropriate in Exemption 7(A) cases. To

demonstrate that information is properly withheld under that Exemption, the agency must

show that disclosure could reasonably be expected to interfere with enforcement

proceedings. 5 U.S.C. § 552(b)(7)(A). Often the agency cannot fully articulate the harm

that could reasonably be expected to result if the information is disclosed without

revealing the very information regarding the investigation that the agency seeks to

protect. See Campbell, 682 F.2d at 265 (in Exemption 7(A) cases, “the interests of the

adversary process may be outweighed by the agency’s legitimate interest in secrecy”).

2 While in Hayden the agency requested court permission to file classified affidavits in

camera, there was no suggestion that this was required, and the request arose in a

different procedural context than the situation here. 608 F.2d at 1383. The agency hadalready filed an affidavit that the district court had found insufficient under Vaughn v.

Rosen, 484 F.2d 820 (D.C. Cir. 1973), and granted the plaintiff’s motion for detailed

itemization, indexing, and justification for non-disclosure. Id . The agency responded

with a supplemental affidavit and a request to file classified affidavits, because further justification would have required the use of evidence that was itself classified and

sensitive. Id.



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While receiving an ex parte, in camera affidavit “should be chosen only where

absolutely necessary,” Arieff , 712 F.2d at 1471 (internal quotations omitted), this

“necessity exists when (1) the validity of the government’s assertion of exemption cannot

be evaluated without information beyond that contained in the public affidavits and in the

records themselves, and (2) public disclosure of that information would compromise the

secrecy asserted.” Id . The unique nature of FOIA cases makes the consideration of in

camera declarations more common:

FOIA cases as a class present an unusual problem that demands an

unusual solution: One party knows the contents of the withheld

records while the other does not; and the courts have been chargedwith the responsibility of deciding the dispute without altering that

unequal condition, since that would involve disclosing the very

material sought to be kept secret. The task can often not be performed by proceeding in the traditional fashion, so that what is

a rarity among our cases [the submission of ex parte filings] generally

must become a commonplace in this unique field.

Id . Moreover, while a court must create “as complete a public record as possible” in

FOIA cases, there is no need to release a redacted version of an in camera declaration

when doing so would “merely duplicate[] material already in the public record.” Hayden,

608 F.2d at 1385, 1389.

B. Defendant’s Submission of an In Camera Declaration Was

Appropriate Under the Circumstances, and Filing a Redacted

Declaration Would Not Provide Plaintiff With any Additional

Information.

Defendant’s submission of a classified in camera, ex parte declaration in support

of is Motion for Summary Judgment was entirely appropriate. Defendant submitted the

public declaration of David M. Hardy in support of its Motion. See ECF No. 9-1, Hardy

Decl. This declaration provides detailed information sufficient to establish, as a matter of

law, that the FBI conducted a reasonable search for records responsive to Plaintiff’s



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§ 552(b)(7)(A), and this one paragraph repeats information that is already contained in

the Hardy Declaration.3

Defendant’s submission thus satisfies the standard in the D.C. Circuit for a court’s

consideration of an in camera declaration. While the detail in the Hardy Declaration is

sufficient for the Court to grant Defendant’s Motion for Summary Judgment, to the extent

the Court disagrees, consideration of the in camera declaration would provide the Court

with additional information to evaluate the FBI’s assertions. See Hayden, 608 F.2d at

1388 (affidavit submitted in camera spelled out justification for non-disclosure with

greater specificity).

4

Moreover, the Hardy Declaration states that public disclosure of

additional information would compromise the very information that the FBI asserts is

protected by Exemption 7(A). See Hardy Decl. ¶ 22 (“The FBI is limited in the amount

of detail it can provide on the public record in order to defend its protection of

information in this FOIA matter without adversely affecting its active, ongoing

investigation.”).

Finally, ordering Defendant to file a redacted version of the declaration on the

public record, as Plaintiff requests, would not further the goal of providing as complete a

public record as possible. See Hayden, 608 F.2d at 1385, 1388-89 (district court

reasonably decided not to order portions of classified affidavit disclosed). Such a filing

would provide no additional information, as the only paragraph that could be publicly

3 The identity of the declarant for the classified in camera, ex parte affidavit cannot be

disclosed without revealing information that could reasonably be expected to interferewith the FBI’s pending investigation.

4 See also Cucci v. DEA, 871 F. Supp. 508, 511 n.2 (D.D.C. 1994) (“Because the Court

concludes on the basis of Mr. Moran’s public declaration that the agency has complied

with the FOIA, it need not and does not consider Mr. Moran’s in camera declaration.”).



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released is one paragraph that repeats information that is already contained in the Hardy

Declaration.

Courts in this Circuit have considered in camera declarations in similar

circumstances, without any mention of redacted versions being filed on the public

record.5 See Campbell, 682 F.2d at 265 (remanding for the district court to consider

submissions justifying the withholding of records under Exemption 7(A) and noting that

“the district court, in its discretion, may accept in camera submissions”); August v. FBI ,

328 F.3d 697, 699, 702 (D.C. Cir. 2003) (granting petition for panel rehearing after

reviewing attached in camera declaration, and remanding to the district court “for in

camera consideration of the applicability of FOIA Exemptions 7(C), 7(D), and 7(E)”);

Elkins v. FAA, Civil Action No. 14-1791 (JEB), 2015 WL 5579542 (D.D.C. Sept. 21,

2015) (granting motion for reconsideration and finding that a record could be withheld

under Exemption 7(E) based on in camera motion and declarations, which contained

classified information); Life Extension Found. v. IRS , 915 F. Supp. 2d 174, 186 (D.D.C.

2013), aff’d , 559 Fed. App’x 3 (D.C. Cir. Apr. 25, 2014) (reviewing in camera

declarations and finding that agency properly invoked Exemptions 3 and 7(D) where the

“in camera declarations provide additional details explaining why the IRS has not

described any investigation or informant information in any greater detail in its public

5 The Court does not need to conduct in camera review of any of the records at issue

before determining whether review of the in camera declaration is appropriate. See

Mobley v. CIA, 806 F.3d 568, 588 (D.C. Cir. 2015) (“Here, as our own review confirms,the district court, after reviewing in camera the FBI’s classified declaration, acted within

its sound discretion when it decided that it did not need to review the classified document

in camera to conclude that the FBI withheld it as properly classified.”); Elec. Privacy Info. Ctr. v. DOJ , 82 F. Supp. 3d 307, 323 (D.D.C. 2015) (declining to conduct in camera review of documents where “the agencies’ public and ex parte declarations provide

sufficient basis to determine that Exemption 7(A) applies to the responsive documents”).



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failed to release as much as possible of the affidavit to the other side because, unlike in

Lykins, submission did not make it impossible for the adversary process to function

effectively).

The remainder of the cases relied on by Plaintiff did not involve FOIA requests,

and most were between private parties (and thus could not have implicated classified or

law enforcement sensitive information). Given the unique nature of FOIA cases and

explicit allowance of in camera submissions in the FOIA itself, Arieff , 712 F.2d at 1469,

Plaintiff’s reliance on non-FOIA cases as a basis for questioning Defendant’s submission

of a classified, in camera declaration is inapposite.

7

7 Compare Arieff , 712 F.2d at 1470 (distinguishing FOIA case from cases that involve

pretrial discovery with respect to consideration of in camera submissions) with Pl.’s Mot.to Show Cause at 5-6 (citing United States v. Zolin, 491 U.S. 554, 565-71 (1989)

(examining Rules of Evidence and policies underlying the attorney-client privilege to

determine standards for the use of in camera review to establish the applicability of the

crime-fraud exception to the privilege); Bareford v. Gen. Dynamics Corp., 973 F.2d1138, 1144-45 (5th Cir. 1992) (observing, in dicta, that the government should have

provided notice to plaintiffs and opportunity to object to in camera production of

documents and affidavit, but saying that this did not alter conclusion that the very subjectof the case was a state secret, since the court did not rely on the in camera material);

United States v. Hall, 854 F.2d 1036, 1041-42 (7th Cir. 1988) (criminal defendant used

inappropriate procedure when submitting ex parte affidavit to court, and there was noreason for submission where affidavit did not provide any new evidence of which

government was not already aware); Williams v. Bd. of Trs. for the Univ. of Conn., Case

No. 3:06CV1999 (AWT), 2008 U.S. Dist. LEXIS 8956 (D. Conn. Feb. 7, 2008)(defendants violated local rule by submitting affidavit ex parte in support of motion for

protective order without seeking leave of court); Parisi v. Rochester Cardiothoractic Assocs., 159 F.R.D. 406 (W.D.N.Y. 1995) (rejecting submission for in camera review of

index to a document that was the subject of a discovery dispute)). Moreover, whereas theSupreme Court in Zolin referenced potential due process implications of routine use of in

camera proceedings, it cited to two cases that also involved in camera submissions to

determine the applicability of the crime-fraud exception, and the circuit courtsdetermined that the use of such proceedings was appropriate under the circumstances.

See 491 U.S. at 571.



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C. D.C. Circuit Precedent and This Court’s Local Rules Do Not Require

Prior Notice or Court Approval for the Submission of an In Camera

Declaration in FOIA Cases, Especially Where the Declaration

Contains Classified Information.

Finally, Plaintiff does not point to any D.C. Circuit authority or Local Rule that

required the FBI to seek permission from or provide prior notice to Plaintiff or the Court

before lodging the classified, in camera declaration, and there is none.8 See, e.g., Life

Extension Found., 915 F. Supp. 2d at 178-79 (considering in camera declarations after

defendant filed notice of lodging). Moreover, to the extent prior notice or permission

might have been the preferred course here, any prejudice caused to Plaintiff by the

lodging of the declaration (which Defendant denies) will be cured by the briefing on

Plaintiff’s Motion to Show Cause and this Court’s ruling on Defendant’s Motion for

Summary Judgment. Defendant has demonstrated why the lodging of, and the Court’s

consideration of, the in camera declaration is proper under D.C. Circuit precedent. While

Defendant believes the Hardy Declaration provides sufficient information for this Court

to grant Defendant’s Motion for Summary Judgment, if this Court decides to rely on the

in camera declaration in deciding that motion, the Court can explain in its opinion why

its consultation of the declaration was appropriate under the governing law. See

Armstrong, 97 F.3d at 581 (district court committed harmless error by not explaining its

reasons for consulting an in camera affidavit).

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Show Cause should be denied.

8 The standards for sealing material, see Local Civil Rule 5.1(h), are different than for

lodging classified, in camera declarations, which are lodged with the Department ofJustice’s Classified Information Security Officer to ensure proper safeguarding of

information.



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Dated: April 26, 2016 Respectfully submitted,

BENJAMIN C. MIZERPrincipal Deputy Assistant Attorney General

MARCIA BERMANAssistant Branch Director

/s/ Jennie L. Kneedler

JENNIE L. KNEEDLERTrial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch20 Massachusetts Ave., N.W.

Washington, D.C. 20001

Tel. (202) 305-8662

Fax (202) 616-8470Email: [email protected]

D.C. Bar # 500261

Attorneys for Defendant


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